Said Mghafri v. Boston, City of - Police Department (SPR 20180117)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 7, 2018 SPRIS/117 Martha DeMaio City of Boston-Police Department One Schroeder Plaza Dear Ms. DeMaio: I have received the petition of Said Mghafri appealing the response of the City of Boston Police Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Mghafri requested "[a]ny files data or records restored, created or obtained by [the Department or its] employees" about him. Mr. Mghafri indicated that these records should include "[a]ny police department files under my name, my photo, or description of me, [a]ny files or records of any undercover investigation about me, [and] [p ]resence of me in any Boston Police Department watch list." The Department provided a response on January 10, 2018, in which it denied Mr. Mghafri access to responsive records pursuant to Exemptions (c) and (f) of the Public Records Law and because Mr. Mghafri has a unique right of access to the requested records. G. L. c. 4, § 7(26)(c), (f). Purpose of request; identity of requester Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Mghafri's purpose in making a request for his own records has no bearing on the public status of any existing responsive records. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, §lOA(d ); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Martha DeMaio SPR18/117 Page2 February 7, 2018 It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department's January lffh response In its January 10,2018, response, the Department indicated that" ... [p]ursuant toM. G. L. c. 4, § 7(26)(c) and (f), any confidential investigatory material and information regarding specific witnesses/victims would have to be removed to protect their privacy. In this case, however, redacting the names and/ or identifying information within the reports would not ensure the privacy of the parties involved." Citing a Public Records Regulation, 950 C.M.R 32.06(1 )(g), the Department indicated that Mr. Mghafri has a unique right of access. Exemption (c) The Department indicated that it withheld responsive records pursuant to Exemption (c) of the Public Records Law. Exemption (c) permits the withholding of: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7(26)(c ). First clause ofE xemption (c) The first clause creates a categorical exemption for personnel and medical information that relates to an identifiable individual and is of a "personal nature." Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,434 (1983). Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306,308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information will be of a sufficiently personal nature to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person's body. Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 135 (1987).

Martha DeMaio SPR18/117 Page 3 February 7, 2018 Personnel information that relates to an identifiable individual is also exempt from disclosure. Globe Newspaper Co., 388 Mass. at 434. Massachusetts courts have found that "core categories of personnel information that are 'useful in making employment decisions regarding an employee' may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee," may be withheld pursuant to the first clause of Exemption (c). Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). Second clause ofE xemption (c) Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Torres v. Attomey Gen., 391 Mass. I, 9 (1984); Attomey Gen. v. Assistant Comm'r of Real Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This clause does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake:(!) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280, 292 (2017). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415,427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. Exemption (f) The Department indicated that it withheld responsive records pursuant to Exemption (f) of the Public Records Law. Exemption (f) permits the withholding of:

Martha DeMaio SPR18/117 Page 4 February 7, 2018 investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7 (26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244,248 (2001); Reinstein v. Police Comm'r of Boston, 378 Mass. 281,290 n.18 (1979). Exemption (f) invites a "case-by case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. Burden ofs pecificity; segregable portions; unique right of access Pursuant to the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(d)(iv) (written response must "identifY any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department's January lOth response did not contain the specificity required in a denial of access to public records. Instead, the Department's response cites Exemptions (c) and (f) without any further explanation as to the exemptions' applicability to the responsive records or portions of the records. Although the Department states that "redacting the names and/ or identifying information within the reports would not ensure the privacy of the parties involved," it is unclear how redacting the records would not protect the privacy of the parties involved. The Department is not permitted to issue a blanket denial without providing any further information with respect to the requested records. A records custodian is required to not only cite an · exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law. G. L. c. 66, § 10 ( d)(iv). It is also unclear why records are being withheld in their entirety. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). See Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289-90 (1979) (the statutory exemptions

Martha DeMaio SPR18/117 Page 5 February 7, 2018 are narrowly construed and are not blanket in nature). The Department must explain why any non-exempt, segregable portions of the responsive records cannot be provided. Also, the Department failed to identify any records, categories of records or portions of records that it intends to withhold from disclosure. To deny access to a record under the Public Records Law, a records access officer, must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 CMR 32.06(3)(c)(4). Here, the Department withheld responsive records without identifying the records. Therefore, the Department must identify the type of record( s) it has in its possession. Further, the Department cited 950 C.M.R 32.06(1 )(g) which states that the Public Records Law shall not apply to an individual who has a unique right of access. However, the Department failed to identify the means affording Mr. Mghafri this right of access or explain its applicability. As such, I find it is unclear how Mr. Mghafri has a "unique right of access" to the requested records allowing the Department to treat his request as something other than a public records request under the Public Records Law. In light of the above reasons, I find that the Department did not meet its burden in responding to the records requests in order to comply with the Public Records Law and its Access Regulations. See G. L. c. 66, § lO(a). I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Accordingly, the Department is hereby ordered to provide Mr. Mghafri responsive records, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre(a)sec.state.ma.us. Mr. Mghafri may appeal the substantive nature ofthe Department's response within ninety days. See 950 C.M.R. 32.08(1). The Department may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, ~m~ Supervisor of Records cc: Said Mghafri